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Wednesday, 26 March 2014

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It is unsurprising that individuals will want to sign
marital agreements to protect their assets when entering into a marriage or
civil partnership, which for many couples won’t even need to be enforced.

So what happens to the agreement if a couple’s
marriage does break down? As it stands, marital agreements are not valid
contracts, meaning that financial settlements are subject to the courts’ orders
when couples decide to divorce. However, since the case of German Hieress Katrin
Radmacher’s divorce in 2006, whereby her pre-nuptial agreement was successfully
enforced to protect her £106m fortune, such relationship or nuptial agreements
have become more widely recognised by the British law.

The Law Commission has recently published a report
which calls for these to become legally binding, thus giving couples the power
to make their own decisions regarding their finances if they were to divorce.
In a country that is deemed the “divorce capital in Europe”, an enforceable
marital agreement would understandably be beneficial for both parties as it
would grant them greater autonomy and make the process more predictable. If the
financial agreements achieved legal finality, they would however be independent
of couples meeting each other’s financial needs and that of their children, and
the court still has the ability to implement orders if they believe the
arrangements to be unfair. This therefore answers opposing views that believe a
change in the law could be sexually discriminatory as women are regularly the
financially weaker party in marriages.

Although relationship or nuptial agreements may be
subject to further changes that were made in the duration of a marriage, I
believe that the recommendations made by the Law Commission’s report could
ultimately benefit divorcing couples. By strengthening the power of their marital
agreement, a change in the law would allow couples to cope better with the
burden of necessary financial arrangements whilst also protecting their assets.

If you are still unsure whether you could benefit
from a marital agreement, contact us today on 0208 205 5307 for a no
obligation, confidential discussion.